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AMARIN CORPORATION PLC
AND
CITIBANK, N.A.,
As Depositary
AND
HOLDERS FROM TIME TO TIME OF AMERICAN
DEPOSITARY RECEIPTS
--------------------------------
Amendment No. 2
to
Deposit Agreement
Dated as of September 25, 2002
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AMENDMENT NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT NO. 2 TO DEPOSIT AGREEMENT, is made as of September 25, 2002
(the "Amendment"), among Amarin Corporation plc, a corporation organized and
existing under the laws of England (the "Company"), CITIBANK, N.A., a national
banking association organized under the laws of the United States of America and
acting solely as depositary (the "Depositary"), and all Holders from time to
time of American Depositary Receipts issued under the Deposit Agreement.
W I T N E S S E T H T H A T
WHEREAS, the parties hereto entered into that certain Deposit Agreement,
dated as of March 29, 1993, as amended by Amendment No. 1 to Deposit Agreement,
dated as of October 8, 1998 (as so amended, the "Deposit Agreement"), for the
creation of American Depositary Receipts ("ADRs") evidencing American Depositary
Shares ("ADSs") representing the Shares (as defined in the Deposit Agreement) so
deposited and for the execution and delivery of such ADRs evidencing such ADSs;
WHEREAS, the Company has changed the par value of its Shares (as set forth
in Section 1.05 of the Deposit Agreement) from 10p to (pound)1, and desires to
amend the Deposit Agreement to reflect such change;
WHEREAS, the Company has changed the ratio of Shares (as defined in the
Deposit Agreement) to ADSs from (i) ten (10) ordinary shares to (1) one ADS to
(ii) one (1) ordinary share to one (1) ADS, and desires to amend the Deposit
Agreement to reflect such change; and,
WHEREAS, pursuant to Section 6.01 of the Deposit Agreement, the Company
and the Depositary deem it necessary and desirable to amend the Deposit
Agreement and the Form of ADR annexed thereto as Exhibit A for the purposes set
forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment, all
capitalized terms used, but not otherwise defined, herein shall have the meaning
given to such terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01. Deposit Agreement. All references in the Deposit Agreement
to the term "Deposit Agreement" shall, as of July 19, 2002 (the "Effective
Date"), refer to the Deposit Agreement, dated as of March 29, 1993, as amended
by Amendment No. 1 to Deposit Agreement, dated as of October 8, 1998, and as
further amended by this Amendment.
SECTION 2.02. Change of Par Value. Section 1.05 of the Deposit Agreement
is amended by deleting it in its entirety and replacing it with the following:
"SECTION 1.05. The term "Shares" shall mean Ordinary Shares of
(pound)1 each in the capital of the Company, validly issued and
outstanding, fully paid and shall include evidence of rights to
receive shares; provided, that in no event shall Shares include
evidence of rights to receive Shares with respect to which the full
purchase price has not been paid."
SECTION 2.03. Change of Ratio. All references made in the Deposit
Agreement to each American Depositary Share representing ten (10) Ordinary
Shares shall, as of the Effective Date (as defined in Section 5.01), refer to
each American Depositary Share representing one (1) Ordinary Share.
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01. Change of Par Value. All references to par value of ordinary
shares of 10p made in the ADRs issued and outstanding as of the Effective Date
shall refer to par value of ordinary shares of (pound)1.
SECTION 3.02. Change of Ratio. All references to each ADS representing ten
(10) ordinary shares made in the ADRs issued and outstanding as of the Effective
Date shall refer to each American Depositary Share representing one (1) Ordinary
Share.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Depositary and the Holders, that:
(a) This Amendment, when executed and delivered by the Company, will be
duly and validly authorized, executed and delivered by the Company, and
constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent transfer, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement as
amended hereby, and any other document furnished hereunder or thereunder
in England, neither of such agreements need to be filed or recorded with
any court or other authority in England, nor does any stamp or similar tax
need to be paid in England on or in respect of such agreements; and
(c) All of the written information provided to the Depositary by the
Company in connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Effective Date. This Amendment is dated as of the date set
forth above and shall be effective as of such date (the "Effective Date").
SECTION 5.02. New ADRs. From and after the Effective Date, the Depositary
shall arrange to have new ADRs printed or amended that reflect the changes to
the form of ADR effected by this Amendment. All ADRs issued hereunder after the
Effective Date, once such new ADRs are available, whether upon the deposit of
Shares or other Deposited Securities or upon the transfer, combination or
split-up of existing ADRs, shall be substantially in the form of the specimen
ADR attached as Exhibit A hereto. However, ADRs issued prior or subsequent to
the date hereof, which do not reflect the changes to the form of ADR effected
hereby, do not need to be called in for exchange and may remain outstanding
until such time as the Holders thereof choose to surrender them for any reason
under the Deposit Agreement. The Depositary is authorized and directed to take
any and all actions deemed necessary to effect the foregoing.
SECTION 5.03. Notice of Amendment to Holders. The Depositary is hereby
directed to send notices informing the Holders of: (i) the terms of this
Amendment, (ii) the Effective Date of this Amendment; and, (iii) that the
Holders shall be given the opportunity, but that it is unnecessary, to surrender
outstanding ADRs.
SECTION 5.04. Indemnification. The Company agrees to indemnify and hold
harmless the Depositary (and any and all of its directors, employees and
officers) ("the Indemnified Persons") for any and all liability it or they may
incur as a result of the terms of this Amendment and the transactions
contemplated herein to the extent that such liability does not arise from the
negligence or willful default of any of the Indemnified Persons.
SECTION 5.05. Ratification. Except as expressly amended hereby, the terms,
covenants and conditions of the Deposit Agreement as originally executed shall
remain in full force and effect.
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
AMARIN CORPORATION PLC
By: /s/ Xxxxxxxx Xxxx
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Name: Xxxxxxxx Xxxx
Title: General Counsel & Company Secretary
CITIBANK, N.A., as Depositary
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
Title: Vice President
EXHIBIT A
UNDER THE LAWS OF ENGLAND AND THE CONSTITUENT
DOCUMENTS OF THE COMPANY, HOLDERS OF AMERICAN DEPOSITARY
RECEIPTS MAY HAVE CERTAIN DISCLOSURE OBLIGATIONS, A SUMMARY OF
WHICH IS SET FORTH IN PARAGRAPH 8 HEREOF. FAILURE TO COMPLY WITH
SUCH DISCLOSURE OBLIGATIONS COULD AFFECT SUCH HOLDER'S
VOTING AND DIVIDEND RIGHTS.
Number AMERICAN DEPOSITARY SHARES
(EACH REPRESENTING ONE
ORDINARY SHARE OF (pound)1 EACH)
(FORM OF FACE OF RECEIPT)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
OF (pound)1 EACH OF
AMARIN CORPORATION PLC
(Organized under the laws of England)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as Depositary (herein called the
"Depositary"), hereby certifies that _____________________________ is the owner
of __________________________________________ American Depositary Shares,
representing deposited Ordinary Shares of (pound)1 each or evidence of rights to
receive such Shares (herein called the "Shares"), of AMARIN CORPORATION PLC, a
Corporation organized under the laws of England (herein called the "Company"),
At the date of the Deposit Agreement (as hereinafter defined), each American
Depositary Share represents rights attributable to one Share deposited under the
Deposit Agreement with the Custodian which at the date of execution of the
Deposit Agreement is Citibank (London), 00 Xxx Xxxxx, Xxxxxx, XX0X0XX, Xxxxxxx.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue (herein called the "Receipts"), all issued and to be issued upon the terms
and conditions set forth in the Deposit Agreement, dated as of March 29, 1993
(as from time to time amended, herein called the "Deposit Agreement"), by and
among the Company, the Depositary and all Holders from time to time of Receipts
issued thereunder, each of whom by accepting a Receipt agrees to become a party
thereto and becomes bound by all the terms and provisions thereof. The Deposit
Agreement sets forth the rights of Holders of the Receipts and the rights and
duties of the Depositary in respect of the Shares deposited thereunder and any
and all other securities, property and cash from time to time received in
respect of such Shares and held thereunder (such Shares, securities, property
and cash are herein called "Deposited Securities"). Copies of the Deposit
Agreement are on file at the principal offices of the Depositary and the
Custodians. The statements made on the face and the reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and axe qualified in
their entirety by, and subject to the detailed provisions of, the Deposit
Agreement, to which reference is hereby made. Terms used and not defined herein
shall have the same meaning as in the Deposit Agreement. The Depositary makes no
representation or warranty as to the validity or worth of the Deposited
Securities.
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender at the Principal Office of the Depositary of this Receipt for the
purpose of withdrawal of the Deposited Securities represented hereby, and upon
payment of (I) the fee of the Depositary for the making of withdrawals and
cancellation of Receipts (as set forth on Exhibit B to the Deposit Agreement)
and (ii) all fees, taxes and governmental charges payable in connection with
such surrender and withdrawal, and subject to the terns and conditions of the
Deposit Agreement and Paragraph 3 hereof, the Company's Articles of Association
(the "Articles" or the "Articles of Association") and the provisions of or
governing the Deposited securities and other applicable laws, the Holder of this
Receipt shall be entitled to delivery, to his or upon his order, of the
Deposited Securities at the time evidenced by this Receipt. Delivery of such
Deposited Securities may be made by the delivery of (a) certificates in the name
of the Holder or as ordered by his and (b) any other securities, property and
cash to which the Holder is then entitled in respect of such Receipts to the
Holder or as ordered by his. Such delivery shall be made, as hereinafter
provided, without unreasonable delay and, at the option of the Holder hereof,
either at the office of the Custodian or at the Principal Office of the
Depositary, provided that the forwarding of certificates evidencing Shares or
other Deposited Securities for such delivery shall be at the risk and expense of
the Holder.
(3) Transfers, Split-ups and Combinations. The transfer of this Receipt is
registerable on the books of the Depositary by the Holder hereof in person or by
duly authorized attorney, upon surrender of this Receipt to the Principal Office
of the Depositary properly endorsed or accompanied by proper instruments of
transfer and funds sufficient to pay any applicable transfer taxes and the
expenses of the Depositary. This Receipt may be split into other Receipts or may
be combined with other Receipts into one Receipt, representing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration, registration of transfer, split-up, combination or surrender of
any Receipt, the delivery of any distribution thereon or withdrawal of any
Deposited Securities, the Depositary or the Custodian may require (a) payment
from the depositor of Shares or presenter of the Receipt of a sum sufficient to
reimburse it for any tax (including, but not limited to, any Stamp Tax and any
tax imposed by the U.K. taxing authority) or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as provided in Paragraph (6) hereof, or in
Exhibit B to the Deposit Agreement, (b) the production of proof satisfactory to
it as to the identity and genuineness of any signature or other matter
contemplated by the Deposit Agreement and (c) compliance with (i) any laws or
governmental regulations relating to Receipts or to the withdrawal of Deposited
Securities and (ii) such reasonable regulations, if any, as the Depositary may
establish consistent with the provisions of the Deposit Agreement subject to
Paragraph (22) hereof.
The Depositary say refuse to execute and to deliver Receipts, register the
transfer of any Receipt or make any distribution of, or related to, Deposited
Securities until it has received such proof of citizenship, residence, taxpayer
status, exchange control approval or other information as it may deem necessary
or proper in accordance with applicable laws and regulations and the terns of
the Deposit Agreement subject to Paragraph (22) hereof. The delivery of Receipts
against deposits of Shares generally may be suspended, or the delivery of
Receipts against the deposit of particular Shares may be withheld, or the
registration of transfer of Receipts in particular instances may be refused, or
the registration of transfers or surrenders of outstanding Receipts generally
may be suspended, during any period when the transfer books of the Depositary or
the Company (or the appointed agent of the Company for transfer and registration
of the Shares) are closed or if any such action is deemed necessary or advisable
by the Depositary or the Company at any time or from time to time because of any
requirement of law, any government or governmental body or commission or under
any provision of the Deposit Agreement or the provisions of or governing
Deposited Securities, or any meeting of the shareholders of the company, or for
any other reason, subject in all cases to Paragraph (22) hereof. Notwithstanding
any provision of the Deposit Agreement or hereof to the contrary, the surrender
of outstanding Receipts and withdrawal of Deposited Securities may not be
suspended or refused, except as permitted in General Instruction IA(1) to Form
F-6 (as such may be amended from time to time) under the Securities Act of 1933
in connection with (i) temporary delays relating to the deposit of Shares in
connection with voting at a shareholders' meeting, or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any U.S. or foreign laws or governmental regulations relating to the Receipts or
to the withdrawal of the Deposited Securities without limitation of the
foregoing, the Depositary will not knowingly accept for deposit under the
Deposit Agreement any Shares or other Deposited Securities (a) that are required
to be registered under the provisions of the Securities Act of 1933, unless a
registration statement is in effect as to such Shares or unless the offering and
sale of such Shares is exempt from registration under the provisions of such Act
or (b) that would thereby infringe any provisions of the Articles of the
Company.
(4) Liability of Holder for Taxes. If any tax or other governmental charge
or assessment imposed under applicable laws (including, without limitation, any
Stamp Tax) shall become payable with respect to this Receipt or any Deposited
Securities represented hereby, such tax or other governmental charge or expense
shall be payable by the Holder hereof to the Depositary. The Depositary may
refuse, and the Company shall be under no obligation, to effect any transfer of
the Receipt, or split-up or combination of the Receipt or, subject to Paragraph
(22) hereof, any withdrawal of Deposited Securities represented hereby until
such payment is made, and may withhold any dividends or other distributions, or
may sell for the account of the Holder hereof any part or all of the Deposited
Securities represented, hereby, and may apply such dividends or other
distributions or the proceeds of any such sale in payment of such tax or other
governmental charge, the Holder hereof remaining liable for any deficiency.
(5) Warranties by Depositor. Every person depositing Shares under the
Deposit Agreement shall be deemed thereby to represent and warrant that such
Shares and the certificates therefore are validly issued, fully paid and
non-assessable, and that all preemptive rights, if any, with respect to such
Shares have been validly waived or exercised and that each such person making
such deposit is duly authorized so to do. Each such person shall also be deemed
to represent that the deposit of Shares or sale of Receipts by that person is
not restricted, and that the Shares deposited by that person are not Restricted
Securities, under the Securities Act of 1933. In addition, such person shall be
deemed to represent that such Shares are not liable to disenfranchisement or
disposal by the Company pursuant to the Articles of Association. Such
representations and warranties shall survive the deposit and withdrawal of
Shares and issuance and cancellation of Receipts in respect thereof.
(6) Charges of Depositary. The Depositary will charge the party to whom
Receipts are delivered against deposits, and the party surrendering Receipts for
delivery of Deposited Securities, $5.00 for each 100 American Depositary Shares
(or portion thereof) represented by the Receipts issued or surrendered. In
addition, Holders will pay the charges and expenses of the Depositary in
accordance with the terms of the Deposit Agreement including Exhibit 8 thereof.
The Company will pay the other expenses of the Depositary and the Registrar
under the Deposit Agreement and as agreed upon from time to time between the
Company and the Depositary. Such charges say at any time and from time to time
be changed by agreement between the Company and the Depositary. The Depositary
may retain for its own account any compensation for the issuance, in accordance
with Section 5.11 of the Deposit Agreement, of Receipts against evidence of
rights to receive Shares, including, without limitation, earnings on the
collateral securing such rights.
(7) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit or any Holder of a Receipt may be required from
time to time to file such proof of citizenship or residence, taxpayer status,
exchange control approval, compliance with applicable laws and the terms of this
Deposit Agreement or such information relating to the registration on the books
of the Company (or the appointed agent of the Company for transfer and
registration of Shares) of the Shares presented for deposit or other
information, to execute such certificates and to make such representations and
warranties, as the Depositary may deem necessary or proper or as the Company may
require by written request to the Depositary consistent with its obligations
hereunder. The Depositary may withhold the delivery or registration of transfer
of any Receipt or the distribution or sale of any dividend or other distribution
of rights of the proceeds thereof or, subject to Paragraph (22) hereof, the
delivery of any Deposited Securities until such proof or other information is
filed, or such certificates are executed or such representations and warranties
are made to the Depositary. The Depositary shall provide the Company with copies
of such proofs and information as the Company may request.
(8) Disclosure of Interests. Notwithstanding any other provision of this
Receipt or of the Deposit Agreement, each Holder agrees to be bound by and
subject to the Articles of Association, and to provide such information as the
Company may request in a disclosure notice (a "Disclosure Notice") given
pursuant to statutory provisions of English law or the Articles of Association.
Failure of a Holder to provide in a timely fashion the information requested in
any Disclosure Notice may, in the Company's sole discretion, result in the
withholding of certain rights in respect of such Holder's American Depositary
Shares (including voting rights and certain rights as to dividends in respect of
the Shares represented by such American Depositary Shares). The Depositary
agrees to use its reasonable efforts to comply with any instructions received
from the Company requesting that the Depositary take the reasonable actions
specified therein to obtain such information.
In addition, any Holder who is or becomes directly or indirectly
interested (within the meaning of the Companies Acts 1985, as amended from time
to time (the "Companies Act")) in 3% (or such other amount as may be required by
the Companies Act) or more of the outstanding Shares, or is aware that another
person for whom it holds such Receipts is so interested, must within two
business days (or such other period as may be required by the Companies Act)
after becoming so interested or so aware, and thereafter upon any changes of at
least 1% of the outstanding Shares, notify the Company as required by the
Companies Act.
(9) Title to Receipt. It is a condition of this Receipt, and every
successive Holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the American Depositary Shares evidenced
hereby), when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the person in whose name this Receipt is
registered on the books of the Depositary as the absolute owner hereof for the
purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement, and for
all other purposes.
(10) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if a Registrar for the Receipts shall
have been appointed, such signature may be a facsimile if this receipt is
countersigned by the manual signature of a duly authorized officer of such
Registrar.
(11) Available Information. The Company is subject to the periodic
reporting requirements of the Securities Exchange Act of 1934 and accordingly
files certain reports with the Commission. Such reports and other information
may be inspected and copied at public reference facilities maintained by the
Commission in Washington, D.C. Dated:
CITIBANK, N.A.,
as Depositary
By ______________________________
(Authorized Officer)
The address of the Principal Office of the Depositary is 000 Xxxx Xxxxxx, Xxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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(FORM OF REVERSE OF RECEIPT)
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(12) Dividends and Distributions: Rights. Whenever the Depositary or the
Custodian shall receive foreign currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the judgment of the Depositary can at such time be converted on
a reasonable basis into dollars distributable to the Holders entitled thereto
and transferable to the United States, the Depositary shall convert or cause to
be converted, by sale or in any other manner that it may determine, such foreign
currency into dollars, and shall transfer such dollars (net any of its
reasonable and customary expenses incurred in such conversion and any expenses
incurred on behalf of the Holder in complying with currency exchange control or
other governmental regulation) to the Holders entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments that entitle
the holders thereof to such dollars, then to the holders of such warrants and/or
instruments upon surrender thereof for cancellation. Such distribution may be
made upon an averaged or other practicable basis without regard to any
distinctions among Holders on account of any application of exchange
restrictions or otherwise.
The Depositary shall distribute only such amount, however, as can bound by
and subject to the attributing to any Holder a fraction of one cent. Any such
fractional amount shall be rounded to the nearest whole cent and so distributed
to Holders entitled thereto. It in the judgment of the Depositary, amounts
received in currency other than United States dollars may not be converted on a
reasonable basis into United States dollars transferable to the United States,
or may not be so convertible for all of the Holders of Receipts entitled
thereto, the Depositary may in its discretion make such conversion, it any, and
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distribution in United States dollars to the extent permissible to the Holders
of Receipts entitled thereto and may distribute the balance of such currency
received and not so convertible by the Depositary to, or hold such balance,
without liability for interest thereon, for the account of, the Holders of
Receipts entitled thereto. If in the opinion of the Depositary any distribution
other than cash or Shares upon any Deposited securities cannot be made
proportionately among the Holders of Receipts entitled thereto, or if for any
other reason the Depositary deems such distribution not to be feasible, the
Depositary may adopt such method as it, with the reasonable approval of the
Company, may deem equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale, at such place or
places and upon such terms as it may deem proper) of the securities or property
thus received, or any part thereof, and the net proceeds of any such sale (net
of taxes and expenses of the Depositary as set forth in Exhibit B to the Deposit
Agreement) shall be distributed by the Depositary to the Holders of Receipts
entitled thereto as in the case of a distribution received in cash. If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Depositary may with the Company's approval, and
shall if the Company shall so request, (i) instruct the Company to deposit or
cause such Shares to be deposited with and registered in the name of the
Custodian and (ii) distribute to the Holders of outstanding Receipts entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, additional Receipts for an
aggregate number of American Depositary Shares representing the number of Shares
received as such dividend or free distribution. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary may
sell the number of Shares represented by the aggregate of such fractions and
distribute the net proceeds, converted into United States dollars if not in such
dollars (if such conversion may in the judgment of the Depositary be achieved on
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a reasonable basis), to the Holders of Receipts entitled thereto. If additional
Receipts are not so distributed (except as provided in the preceding sentence),
each American Depositary Share shall thenceforth also represent the additional
Shares distributed upon the Deposited Securities represented thereby. In the
event that the Company shall offer or cause to be offered to the holders of any
Deposited Securities any rights to subscribe for additional Shares or any rights
of any nature, the Depositary may, after consultation with the Company, and if
requested in writing by the Company shall, either (a) make such rights available
to all Holders or certain Holders but not others by means of warrants or
otherwise, if lawful and feasible, or (b) if making such rights available is not
lawful or not feasible, or if the rights represented by such warrants or other
instruments are not exercised or appear to be about to lapse, sell such rights
or warrants or other instruments at public or private sale, at such place or
places and upon such terns as the Depositary may deem proper, and allocate the
proceeds of such sales, as in the case of a cash distribution, for account of
the Holder otherwise entitled thereto upon an averaged or other practicable
basis without regard to any distinctions among such Holders because of exchange
restrictions or the date of delivery of any Receipt or Receipts or otherwise. In
the event the Depositary does not receive such written notice, the Depositary
will have discretion as to whether such rights are to be made available to the
Holders of in disposing of such rights on behalf of such Holders or in allowing
such rights to lapse. The Depositary shall not be responsible for any failure to
make such rights available to Holders in general or any Holder in particular. If
a Holder wishes to exercise the rights allocable to the ADSs of such Holder, the
Depositary, upon the Holder's written request and subject to the terms and
conditions of the Deposit Agreement (including Section 4.04 thereof), will make
such rights available to such Holder.
Notwithstanding anything to the contrary in this Receipt, if registration
under the Securities Act of 1933 of the securities to which any rights relate is
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required in order for the Company to offer such rights or such securities to
Holders and sell the securities represented by such rights, the Depositary will
not offer such rights to the Holders of Receipts (i) unless and until such a
registration statement is in effect, or (ii) unless the Company furnishes the
Depositary an opinion of counsel for the Company in the United States
satisfactory to the Depositary or other evidence satisfactory to the Depositary
to the effect that the offering and sale of such securities to the Holders of
such Receipts are exempt from or do not require registration under the
provisions of the Securities Act of 1933.
(13) Record Dates. Whenever the Depositary shall receive notice of the
fixing of a record date by the Company for the determination of holders of
Deposited Securities entitled to receive any cash dividend or other cash
distribution or any distribution other than cash, or any rights to be issued
with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of holders of Shares or other Deposited Securities or whenever the
Depositary shall find it necessary or convenient in connection with the giving
of any notice, solicitation of any consent or any other matter, the Depositary
shall, after consultation with the Company, fix a record date as close as
practicable to the date corresponding to the record date fixed by the Company in
respect of the Shares for the determination of the Holders of Receipts who shall
be entitled to receive such dividend, distribution or rights, or the net
proceeds of the sale thereof, or to give instructions for the exercise of voting
rights at any such meeting or to give or withhold such consent, or to receive
such notice or solicitation or to otherwise take action, or whose Receipts shall
evidence such changed number of Shares.
(14) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting or solicitation of consents or proxies from holders of
Shares or other Deposited Securities, the Depositary shall fix a record date in
respect of such meeting for the giving of instructions for voting such consent
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or proxy and shall mail to Holders a notice which shall contain (a) such
information as is contained in such notice of meeting and (b) a statement (in a
form provided by the Company) that the Holders at the close of business on the
specified record date will be entitled, subject to any applicable provisions of
the laws of England and of the Articles of Association of the Company and the
provisions of or governing Deposited Securities (which provisions, if any, shall
be summarized in pertinent part), to instruct the Depositary as to the exercise
of the voting rights, if any, pertaining to the Shares or other Deposited
Securities represented thereby and (c) a brief statement as to the manner in
which such instructions may be given including an express indication that
instructions may be given to the Depositary to give a discretionary proxy to a
person or persons designated by the Company. Upon receipt of the written request
of a Holder (an "Instructing Holder") on such record date the Depositary shall
endeavor insofar as practicable and permitted under applicable law and the
provisions of the Articles of Association of the Company and the provisions of
the Deposited Securities to vote or cause the Custodian to vote the Shares
and/or other Deposited Securities represented by American Depositary Shares
evidenced by such Receipt in accordance with the instructions set forth in such
request. In the event a poll is duly demanded and if no instructions are
received, the Depositary will deem, unless otherwise requested by the Company
and unless otherwise provided for in the Deposit Agreement, such Holders to have
instructed the Depositary to give a discretionary proxy to the person designated
by the Company; provided, however, that no discretionary' proxy shall be given
with respect to any proposition as to which the Depositary has actual knowledge
which (i) involves any solicitation of opposing proxies or other substantial
opposition, or (ii) authorizes a merger, consolidation, or any other matter
which say materially affect the rights and privileges of the holders of Shares
or the Holders. Unless specifically instructed by at least two (2) Holders or a
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Holder or Holders representing not less than ten percent (10%) of the total
voting rights of all Holders having the right to vote at such meeting, the
Depositary shall not join in demanding a poll and, in such case, the Depositary
shall follow the instructions of the Instructing Holders holding Receipts
evidencing a majority of the American Depositary Shares held by all Instructing
Holders.
Subject to the previous paragraph, neither the Depositary nor the
Custodian shall vote or attempt to exercise the right to vote the Shares or
other Deposited Securities represented by American Depositary Shares evidenced
by a Receipt other than in accordance with such written instructions. In
accordance with the Articles of Association and the Companies Act, failure by a
Holder, or a person holding an interest in Shares through a Holder, to comply
with the Company's request for information of the nature referred to in
Paragraph 8 may result, inter alia in withdrawal of the voting rights of the
Shares underlying the Receipts held by that Holder and thus of the rights
described in this Paragraph 14 to direct the voting of Deposited Securities
underlying such Receipts.
(15) Chances Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and the American Depositary
Shares shall thenceforth represent the new Deposited Securities so received in
exchange or conversion, unless additional or new Receipts are delivered pursuant
to the following sentence. In any such case the Depositary may with the
Company's approval, and shall, if the Company so requests, execute and deliver
additional Receipts as in the case of a stock dividend, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts.
Notwithstanding the foregoing, in the event that any security so received may
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not be lawfully distributed to some or all Holders, the Depositary may, with the
Company's approval, and shall if the Company requests, sell such securities at
public or private sale, at such place or places and upon such terms as it may
deem proper, and may allocate the net proceeds of such sales for the account of
the Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash.
(16) Reports: Inspection of Transfer Books. The Depositary shall make
available for inspection by the Holders of Receipts at its Principal office any
reports and communications received from the Company which are both (a) received
by the Depositary as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary shall also send to Holders copies of such reports furnished by
the Company as provided in the Deposit Agreement. The Depositary will keep books
for the registration of Receipts and their transfer, which books shall at all
reasonable times be open for inspection by the Company and Holders of Receipts,
provided that such inspection shall not be for the purpose of communicating with
Holders of Receipts in the interest of a business or object other than the
business of the Company or a matter related to the Deposit Agreement or the
Receipts.
(17) Taxation. Notwithstanding any other provision of the Deposit
Agreement, in the event that the Depositary determines that any distribution in
property (including Shares or rights to subscribe therefor) is subject to any
tax or other governmental charge or assessment which the Depositary is obligated
to withhold, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner as the Depositary deems necessary and practicable to pay such taxes, by
public or private sale, at such place or places and upon such terms as it may
deem proper, and the Depositary shall distribute the net proceeds of any such
sale after deduction of such taxes, charges or assessments to the Holders of
Receipts entitled thereto (and net of fees of the Depositary) in the manner
specified in Paragraph (12) hereof.
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(18) Liability of the Company and Depositary. Neither the Depositary nor
the Company nor shall any of their respective directors, employees, agents or
affiliates shall incur any liability to any Holder or any other person if, by
reason of any provision of any present or future law of the United States or
England or any other country, or of any other governmental authority, or by
reason of any provision, present or future, of the Articles of Association of
the Company, or by reason of any act of God or war or other circumstances beyond
its control, the Depositary or the Company shall be prevented or forbidden from
doing or performing any act or thing which by the terms of the Deposit Agreement
it is provided shall be done or performed or shall be obliged to do anything
inconsistent with this Deposit Agreement; nor shall the Depositary or the
Company incur any liability to any Holder or other person by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which by the terms of this Deposit Agreement it is provided shall or may
be done or performed, or by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement or in the Articles of
Association. Where, by the terms of a distribution pursuant to Sections 4.01,
4.02 or 4.03 of the Deposit Agreement, or an offering or distribution pursuant
to section 4.04 or 4.08 of the Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to Holders, or some of them,
and the Depositary may not dispose of such distribution or offering on behalf of
such Holders and make the net proceeds available to such Holders, then the
Depositary shall not make such distribution or offering, and shall allow any
such rights, if applicable, to lapse. Neither the Company or its agents nor the
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Depositary or its agents assumes any obligation or shall be subject to any
liability under the Deposit Agreement to Holders or other persons, except that
each of them agrees to use its best judgment and good faith in the performance
of its obligations set forth in the Deposit Agreement. The Depositary shall not
be subject to any liability with respect to the validity or worth of the
Deposited Securities. Neither the Company nor the Depositary shall be (a) under
any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense and liability, unless indemnity
and security satisfactory to it against all expense (including fees and
disbursements of counsel) and liability be furnished as often as may be
required, and no Custodian shall be under any obligation whatsoever with respect
to such proceedings, the responsibility of a Custodian being solely to the
Depositary or (b) liable for any action or inaction by it in reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Shares for deposit, any Holder, or any other person believed in good faith to be
competent to give such advice or information. The Depositary and its agents
shall not be responsible for any failure to carry out any instructions to vote
any of the Deposited Securities, or for the manner in which any such vote is
cast or effect any such vote, provided that any such action or inaction is in
good faith. No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of the Deposit Agreement. Subject to the further terms
and provisions of this Xxxxxxxxx (00), Xxxxxxxx, N.A. and its agents say own and
deal in any class of securities of the Company and its affiliates and in
Receipts. The Depositary may issue Receipts against evidence of rights to
receive Shares from the Company, or any custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of the Shares. Such evidence of rights shall consist of written blanket
or specific guarantees of ownership of Shares furnished on behalf of the holder
thereof.
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The Depositary shall not lend Shares or Receipts; provided, however, that
the Depositary reserves the right to (i) issue Receipts prior to the receipt of
Shares pursuant to Section 2.02 of the Deposit Agreement and (ii) deliver shares
prior to the receipt and cancellation of Receipts pursuant to Section 2.05 of
the Deposit Agreement, including Receipts which were issued under (i) above but
for which Shares may not have been received. The Depositary may receive Receipts
in lieu of Shares under (i) above and receive Shares in lieu of Receipts under
(ii) above. Each such transaction shall be (a) accompanied by (x) a written
representation by the person or entity (the "Applicant") to whom Receipts are
issued or Shares delivered that at the time the Depositary issued such Receipts
or delivers such Shares, the Applicant or its customer owns the Shares or
Receipts to be delivered to the Depositary, or (y) such evidence of ownership of
Shares or Receipts as the Depositary deems appropriate, (b) subject to a written
representation by the Applicant that it will hold such Shares or Receipts in
trust for the Depositary until their delivery to the Depositary or Custodian,
reflect on its records the Depositary as owner of such Shares or Receipts and
deliver such Shares upon the Depositary's request, (c) at all times fully
collateralized (marked to market daily) with cash, United States government
securities, or other collateral of comparable safety and liquidity, (d)
terminable by the Depositary on, not more than five (5) business days notice,
and (e) subject to such further indemnities and credit regulations as the
Depositary deems appropriate. The Depositary intends that the number of Receipts
issued by it under (i) above and outstanding at any time, generally will not
exceed thirty percent (30%) of the American Depositary Shares issued by the
Depositary with respect to which Shares are on deposit with the Depositary or
Custodian; provided, however, that the Depositary reserves the right to change
or disregard such limit from time to time as the Depositary deems appropriate.
The Depositary will also set limits with respect to the number of Receipts and
Shares involved in transactions to be effected hereunder with any one person on
a case by case basis as it deems appropriate.
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Collateral provided by an Applicant for Receipts or Shares, but not the
earnings thereon, shall be held for the benefit of the Holder. The Depositary
may retain for its own account any compensation received by it in connection
with the foregoing, including, without limitation, earnings on the collateral.
(19) Resignation and Removal of Depositary; Substitution of the Custodian.
The Depositary may at any time resign as Depositary under the Deposit Agreement
by written notice of its election so to be delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary,
reasonably satisfactory to the Company, and its acceptance of such appointment
as provided in the Deposit Agreement. The Depositary may at any time be removed
by the Company without cause by written notice of such removal, effective upon
the appointment of a successor Depositary and its acceptance of such appointment
as provided in the Deposit Agreement. The term "Depositary" shall also refer to
any successor depositary appointed pursuant to this Paragraph (19). The
Depositary may at any time appoint a substitute custodian, approved by the
Company, and the term "Custodian" shall also refer to such substitute.
(20) Amendment of Deposit Agreement and Receipts. The Receipts and the
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary. Any amendment which shall impose or
increase any fees or charges (other than the fees of the Depositary for the
execution and delivery or the cancellation of Receipts and taxes or other
governmental charges), or which shall otherwise prejudice any substantial
existing right of Holders of Receipts, shall, however, not become effective as
to outstanding Receipts until the expiration of three months after notice of
such amendment shall have been given to the Holders of outstanding Receipts. The
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parties hereto agree that any amendments which (i) are reasonably necessary (as
agreed by the Company and the Depositary) in order for (a) the American
Depositary Shares to be registered on Form F-6 under the Securities Act of 1933
or (b) the American Depositary Shares or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. Every Holder of a Receipt at the
time any amendment to the Deposit Agreement so becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement or such Receipt as amended
thereby. In no event shall any amendment impair the right of the Holder hereof
to surrender this Receipt and receive therefor the Deposited Securities
represented hereby, except in order to comply with mandatory provisions of
applicable law.
(21) Termination of Deposit Agreement. The Depositary will at any time at
the direction of the Company terminate the Deposit Agreement by mailing notice
of such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have resigned, or (ii) the
Company shall have given notice of the removal of the Depositary under the
Deposit Agreement, and, in either case, a successor depositary shall not have
been appointed and accepted its appointment, the Deposit Agreement shall
automatically terminate on said 60th day after delivery of such notice. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Holders thereof, and shall not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights as provided
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in the Deposit Agreement, and shall continue to deliver Deposited Securities,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary. At any time after the expiration of
six months from the date of termination, the Depositary may sell at public or
private sale, at such place or places and upon such terms as it may deem proper
and in accordance with applicable law, the Deposited Securities then held
hereunder, and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it hereunder, in an unsegregated
escrow account, without liability for interest, for the pro rata benefit of the
folders of Receipts which have not theretofore been surrendered. Thereafter, the
Depositary shall be discharged from all obligations under this Deposit
Agreement, except to account for such net proceeds and other cash (after
deducting, or charging, as the case may be, in each case the fees of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.08 and 5.09 of the Deposit Agreement.
(22) Compliance with U.S. Securities Laws. Notwithstanding anything in the
Deposit Agreement or Receipt to the contrary, the Company and the Depositary
each agree that it will not exercise any rights it has under this Deposit
Agreement to prevent the withdrawal or delivery of Deposited Securities in a
manner which would violate the United States securities laws, including, but not
limited to, General Instructions I A(l) to Form F-6 Registration Statement, as
amended from time to time, under the Securities Act of 1933.
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